The following is an excerpt from “Fragments III: Democracy, “ a journal from T’ruah.
In secular Jewish American life, democracy is often treated as a Jewish value, and voting in elections as akin to a mitzvah. Historically and today, Jewish voting turnout is higher than the national average.1 Yet is there a basis for this affinity for democracy in classical Jewish thought?
Many modern writers, particularly in but not limited to egalitarian movements, have connected voting to Jewish texts.2 However, I believe that Rabbi Hershel Schachter, a Rosh Yeshiva and Rosh Kollel at Yeshiva University — who is widely considered the pre-eminent rabbinic authority of Centrist Orthodoxy today — provides a unique contribution to this topic. Rabbi Schachter roots voting in halakhic texts in a way that stimulates deeper thought about the philosophical underpinnings of voting and democracy.
In one of his halakhic thought essays,3 Rabbi Schachter analyzes voting in democracies from the perspective of halakhah and employs three interconnected analogies: laws of community development, how a beit din (court) reaches a decision, and laws of business partnership. In perhaps the simplest of the three analogies, Rabbi Schachter draws on some of the earliest rabbinic texts about how a community can compel its residents to contribute to both religious and secular communal needs. According to the Mishnah and Tosefta, this includes synagogue construction,4 security costs,5 and the water system.6
These early sources are vague regarding how these communal decisions are reached, but Moshe Isserles, the great 16th-century Polish rabbi also known by his acronym as the Rema, writes that when the community stakeholders cannot agree, they follow the majority of votes to reach a decision.7
The Three-Judge Panel
Where does the Rema get this idea? He doesn’t tell us, but the Vilna Gaon, the important 18th-century Lithuanian rabbi, suggests we look to the Talmud in Sanhedrin 29a, which includes a discussion of majority rule in a beit din.8 Traditionally, there are three members of a beit din judging civil law. The Mishnah teaches that the judges do not need to reach a unanimous decision. Rather, the verdict follows the majority. Rashi explains that the source for this principle is Exodus 27:2, which, according to the Talmudic sages, teaches us to follow the majority9 on judicial decisions.10
In developing the meaning of this majority vote, Rabbi Schachter cites an explanation by the medieval school of Talmudic commentary, Tosafot.11 Tosafot12 teach that when the civil court votes, “the minority is as if it does not exist.”13 Rabbi Schachter fills in that, according to Tosafot, the underlying dynamic is the Jewish legal principle that “the majority is considered to be like the entirety” (rubo ke-kulo). In other words, the court is seen as a single body, not just its individual votes, and it is the majority that determines the court’s decision as a body. Therefore, we do not say that the majority of the court’s judges made a decision, but rather that the court itself made the decision. Similarly, in the case of majority rule in a democracy, we do not say that the majority of people made a decision, but rather that The People decided.
What happens if some sizable portion of the population does not vote? Whether or not Rabbi Schachter believes this himself, it logically follows from the comparison to the court majority that the democratic legitimacy of elections requires sufficient electoral participation, whether or not the majority would have won anyway. The previously cited Mishnah (Sanhedrin 29a) adds that if two of the three judges on a beit din agree, but the third says “I don’t know,” it is not considered a legitimate verdict, and another judge must replace them. Even though the two judges constitute a majority vote whether the third judge disagrees or abstains, the decision does not include an opinion — even a dissenting one — from the third judge. The case would be that two judges made a decision rather than a three-member court.
The same could be said regarding voting in a representative democracy. If a sizable minority opts out of voting, or is prevented from voting by lack of access or felony disenfranchisement, we might very well say that the resulting election would not truly represent “the will of the people.”
Coercing the Minority
“Majority rules” raises another challenge: How can the minority be compelled to go along? To fully explain this legal right, Rabbi Schachter compares voters to partners in a business. For example, he writes, partners can vote to expand their business operations, even if it requires all of the partners — including the ones who vote against it — to contribute more money. Just as Jewish community members can be forced to pay for expenses they voted against,14 electoral decisions to raise taxes are binding even upon those who voted against them. In an online d’var Torah, Rabbi Schachter states that this is the case even if the minority does not personally benefit in any way from such expanded government services. As he puts it, “Even if much of the tax money goes towards expenditures that are not to one’s personal liking and that one gets nothing out of, such is the [halakhah] of any partnership: the majority of the partners have the right to determine what are the reasonable needs of the partnership.”15 For this reason, he argues, those who fail to pay their obligatory share of taxes (provided that they are not discriminatory16) are stealing from the other partners in the polity, because everyone else would either have to pay more to make up the money lost or lose government services they deem necessary.
The analogy between voters and business partners leads Rabbi Schachter towards a vision of representative democracy that views elected officials as delegates, rather than as trustees.17 In the delegate model, officials represent the views, interests, and preferences of the voters who elected them, while in the trustee model, officials serve as part of a deliberative body and use their independent judgment to determine what is best for the nation as a whole, even when it conflicts with their constituents’ needs. Rabbi Schachter’s comparison of voters to business partners suggests he considers elected officials to be managers of the partners’ interests rather than independent decision-makers.
Back to Communal Needs: Protecting the Minority
Are there cases where the majority does not rule? Rabbi Schachter believes that there are times when even one person can compel the rest of the people to accommodate them. We return to where we started, with communal needs. The Rema, citing the 14th-century French authority Rabbeinu Yerucham18, writes that it is not only the case that the majority can compel the minority: Minorities can compel majorities to accommodate certain communal needs, such as security measures and synagogue construction. Rabbi Schachter also cites the Vilna Gaon,19 who maintains that the source of this exception is the Toseftot stating that town members can force others to pay for certain essential communal services (e.g., a synagogue20 or protective wall21).
If “the townspeople can compel each other” merely meant that the majority rules, there would have been no need to list these specific cases. Instead, the Tosefta could have just stated that all communal needs are subject to popular vote. That these Toseftot enumerate specific needs suggests that they are considered significant enough that even a minority can compel the majority to pay for them.
Rabbi Schachter posits that the common denominator between them is that they are “compelling claims.” Mikvahs (ritual baths needed for a variety of purposes, from conversions, to buying new metal or glass utensils, to enabling marital relations) and Eruvs (which allow carrying items in public on Shabbat) are so essential to life that even individuals can compel the rest of the population to pay for them. Rabbi Schachter also includes communal ordinances, such as prohibiting excessive noise at night that prevents people from sleeping. Since the primary focus of Rabbi Schachter’s essay is local Jewish communities, he does not provide the reader with equivalents in a secular democracy. One may speculate what other needs or standards (education? civil rights? healthcare?) are basic to a democratic society. Without a shared code of law or ethics as reference (such as halakha provides to the Jewish community), a majority could always argue that the minority’s claims have no inherent justification or that the basic standard has already been met. Nonetheless, whether or not Rabbi Schachter intended such, extending his logic to a secular democracy offers a significant contrast to the (mostly) negative liberties enshrined in the U.S. Constitution (“freedom from”). In addition to what the government cannot do to its citizens, the polity also has social obligations towards its citizens that individuals may claim, even against the majority.
Halakha and Political Theory (or: Rabbi Shachter and Dworkin)
The conceptual assumptions of Rabbi Schachter’s halakhic thought regarding democracy can be better appreciated alongside the work of a political theorist who also uses the analogy of partnership, Ronald Dworkin.22 Dworkin23 argues24 that citizens of a polity should be seen as free and equal partners who each have their own share in the collective decisions and actions of their government. Like Rabbi Schachter, Dworkin’s conception of democracy as a partnership leads him to value minority rights. For Dworkin, even when a decision represents the majority of citizens, it never has moral authority to curb the voting rights or other basic rights of a minority. Even if they are in the minority, other citizens remain partners and cannot be prevented from having their voices in the partnership represented as well. Similarly, Rabbi Schachter’s analogies of voters to business partners and judges concretize Dworkin’s notion of partnership. As mentioned previously, Rabbi Schachter’s comparison of voting to judges adjudicating a court case suggests that each citizen’s vote is essential to the whole. Their very ability to contribute their views makes elections more closely represent “the will of the people.”
Rabbi Schachter is not known to have any personal interest in political or social theory and gives us no reason to believe that he has been influenced by theorists such as Dworkin. This makes it all the more interesting to see how he develops a Jewish approach to democracy.
Rabbi Schachter’s analogy to business partnerships helps us concretize this imagery, and his halakhic analysis also elevates the role that taxes play in citizenship. While some (such as neo-libertarians) may view paying taxes as theft, or at least as a violation of basic rights, the democracy as-business-partnership metaphor centralizes taxes as the basic starting point to democratic participation.
Beyond these particular differences, Rabbi Schachter’s halakhic analysis of democracy illustrates how studying Jewish texts can shed light on modern questions and reminds us that voting on communal needs is not just a modern invention. Finally, it enables us to more firmly root our values and actions within Jewish tradition. Those who are more invigorated about voting after reading this may identify with a Talmudic teaching on the power of study: “Great is study, because it leads to action.”25
NOTES
1“Could the Jewish Vote Decide the Election?,” Leonard Saxe, (Brandeis Now, July 1, 2024) https://www.brandeis.edu/now/2020/october/elections-jewish-vote steinhardt.html. Rabbi Dr. Jane Kanarek wrote a chapter on the topic for “The Observant Life: The Wisdom of Conservative Judaism for Contemporary Jews” (2012).
2 For example: “What’a So Jewish About Voting?,” Rabbi Dara Lithwick, (ReformJudaism.org, 2024) https://reformjudaism.org/whats-so-jewish-about-voting; “The Commandment to Vote: Jewish Texts on Voting and Fair Elections,” Rabbi Ed Stafman and Rabbi Mark Hurvitz, (ReformJudaism.org, 2024) https://reformjudaism.org/commandment-vote-jewish-texts-voting-and-fair-elections, originally developed for T’ruah and based on a 2014 teshuvah by Rabbi David Markus; “Judaism as a Source of Democratic Thought,” Rabbi David Saperstein, (Sh’ma: A Journal of Jewish Ideas, September 3, 2012) http://shma.com/judaism-as-a-source-of- democratic-thought/.
3“The Principle Underlying the Law Regarding the Obligations of Neighbors” [Hebrew], Rabbi Hershel Schachter, in Ginat Egoz (Flatbush Beth Hamedrosh) Ginat Egoz, 2007), pp. 180-185.
4 Tosefta Bava Metzia 11:23
5Bava Batra 7b:6
6 Tosefta Bava Metzia 11
7 Gloss on Shulchan Aruch (Choshen Mishpat 163:1)
8 Biyur HaGra Choshen Mishpat 163:11
9 Sanhedrin 3b:13
10 Sanhedrin 29a, s.v. “Shenayim Omrim”. The Hebrew of the biblical verse is confusing, so its plain meaning is not clear, but the last three words of the verse do say, “Incline after the multitude.”
11 Not to be confused with Tosefta. The Tosefta (plural Toseftot) is a collection of rabbinic text from the same period as the Mishnah but not codified into the Mishnah, for reasons lost to history. It is nonetheless quoted frequently as a prooftext in the Talmud and used as a legal precedent. Both Tosefta and Tosafot come from a Hebrew/Aramaic root meaning “addition.”
12 Tosafot, Bava Kamma 27b, s.v. “Ka Mashma Lan”
13 The background to the teaching is that Tosafot are bothered by a seeming contradiction about whether Jewish law can rely on a mere majority in monetary matters. Tosafot note that elsewhere the Talmud teaches that we do not follow the majority on monetary matters. This is in the case of a person claiming that a seller defrauded them, when they paid for a barrel but received a jar instead. Although most people use separate words for the two items, a minority of people do use the terms interchangeably. Therefore, the Talmud rules, the buyer cannot use the majority’s linguistic usage to get their money back from the seller because “we do not follow the majority in monetary matters.” In light of this principle, Tosafot ask how a monetary judgment can be executed with a mere majority rather than requiring a unanimous verdict. Tosafot answer by pointing to a fundamental difference between these two majorities. In the fraud case, the majority is countered by other legal principles like the possession on the part of the seller. By contrast, when the civil court votes, “the minority is as if it does not exist,” and thus the court as a whole — not just the majority votes — are extracting money from the one who lost the case.
14 Shulchan Arukh Choshen Mishpat 163:1
15 “Taxation and Dina Demalchusa,” Rabbi Hershel Schachter, (TorahWeb, 2005) https://www.torahweb.org/torah/special/2005/rsch_taxes.html
16 Shulchan Arukh Choshen Mishpat 369:8.
17 “Political Representation,” (Stanford Encyclopedia of Philosophy, August 29, 2018) https://plato.stanford.edu/entries/political-representation/
18 Shulchan Arukh Choshen Mishpat 163:1
19 Choshen Mishpat 163:2
20 Tosefta (Lieberman) Bava Metzia 11:23
21 Mishnah Bava Batra 7b
22 Dworkin happened to come from a Jewish family. According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century.
23 “Ronald Dworkin and Partnership Democracy,” Matthew McManus, (Pulaski Institution) https://www.pulaskiinstitution.org/the-pulaski-blog/ bl53xq26e9sl092fw1pveonw0ajgg0
24 “The Partnership Conception of Democracy,” Ronald Dworkin, (California Law Review 86.3, May 1998) https://lawcat.berkeley.edu/record/1116383?ln=en&v=pdf
25 Kiddushin 40b
RABBI DAVID POLSKY (he/him) is a rabbi, educator, and kashrut professional living in Southfield, MI, with his wife and two daughters. Before moving to Michigan, he served as the rabbi of Congregation Anshe Sfard of New Orleans. Rabbi Polsky received his semikhah from Yeshiva University. His main research interest is the integration of Yeshiva-style Talmud study and social justice. He volunteers for many local Jewish organizations, including Detroit Jews for Justice.